Biography

Herbert was elected to New College from Winchester on the recommendation of Charles II. Before qualifying as a barrister he went to Ireland in attendance on Lord Berkeley of Stratton. His application for a post in the Irish Chancery was unsuccessful, but he was appointed chief justice of Tipperary. A letter to Ormonde of 25 Feb. 1682 reported that:

Mr Herbert, who finding his practice in Ireland not likely to answer his expectations hath during his last being to England resolved to settle at Westminster Hall, for which he hath encouragement from some grandees there, and Colonel [John] Churchill [II] hath written him word from Scotland that his Royal Highness will take him into his service, if he were recommended from hence, where his practice of the law hath been.

He was duly given employment by the Duke of York, to whom his high notions of the royal prerogative commended him. As chief justice of Chester he was an important member of the council in the marches of Wales sitting at Ludlow, for which he was returned in 1685. He was appointed to six committees, including those on the bills for providing carriages for royal progresses, to rebuild the Earl of Powis’s London house, and to repair Bangor cathedral. On the landing of Monmouth he took the chair of the committee on the bill for preserving the King’s person, and carried it up to the Lords.3

On Herbert’s appointment as lord chief justice in October, Lord Chancellor Jeffreys commended him for his ‘ability, learning, integrity and resolution’, and urged him to take ‘the utmost vengeance of the law’ upon the implacable enemies of the monarchy. In reply Herbert promised that he would ‘particularly remember the obstinate and incurable Whigs’; and on the western circuit in 1686 he expressed disappointment that ‘the most substantial escaped’ after the Monmouth rebellion. He is chiefly remembered for his verdict in favour of the dispensation given to Edward Hales II. However, as a member of the commission for ecclesiastical causes he had voted against a proposal that the expelled fellows of Magdalen College, Oxford, should be incapacitated, and he refused to abet the King’s design of introducing martial law by declining to order the execution of a deserter from the army. He was therefore transferred to the common pleas before the trial of the Seven Bishops. In December 1688 he took out a pass to go beyond the seas, and joined James in exile, where in January 1689 he was given the new great seal struck for James in France and appointed lord chancellor. He accompanied James to Ireland and became a member of his Irish Privy Council. When he was proposed for exception from the indemnity in 1689, his old schoolfellow Sir John Holt defended him:

I have discoursed this point of dispensation with him, and I can say it was his own true opinion, for he aimed at nothing of preferment, and he went not so far as King James would have had him.

Before leaving England, Herbert had conveyed to his brother Charles Oatlands and 200 acres of land in Surrey which he held on a 99-year crown lease, but William seized it at the time of Herbert’s outlawry. He was excepted from the Act of Indemnity in 1690, and created Earl of Portland in the Jacobite peerage. He died of apoplexy at St. Germain 5 Nov. 1698. Burnet wrote of him as ‘a well-bred and virtuous man, generous and good-natured. He was but an indifferent lawyer’.4